1 United States District Court for the Eastern District Of

Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 1 of 22 PageID #: 87 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK COMMON CAUSE NEW YORK, as an organization and on behalf of its members; BENJAMIN BUSCHER; SEAN HENNESSEY; REBECCA LIBED; ANDREW GERALD; SUSAN MILLER; and Case No. 1:16-cv-06122-NGG-VMS SARAH MILAM; Plaintiffs, v. FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY BOARD OF ELECTIONS IN THE CITY OF RELIEF NEW YORK; MARIA R. GUASTELLA, FREDERIC M. UMANE, JOSE MIGUEL ARAUJO, JOHN FLATEAU, LISA GREY MICHAEL MICHEL, MICHAEL A. RENDINO, ALAN SCHULKIN, SIMON SHAMOUN, ROSANNA VARGAS, in their official capacities as Commissioners of the Board of Elections in the City of New York; and MICHAEL J. RYAN, in his official capacity as the Executive Director of the Board of Elections in the City of New York; Defendants. Plaintiffs, on behalf of themselves and all others similarly situated, by and through undersigned counsel, for their Complaint for Injunctive and Declaratory Relief, allege upon knowledge as to their own conduct and upon information and belief as to the conduct of others, as follows: 1 Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 2 of 22 PageID #: 88 INTRODUCTION This action seeks to redress New York City’s removal of registered voters from the voter registration rolls in violation of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § 20501 et seq. Sections 8(a)(3) of the NVRA provides that “the name of a registrant may not be removed from the official list of eligible voters except (A) at the request of the registrant; (B) as provided by State law, by reason of criminal conviction or mental incapacity; or (C) as provided under paragraph (4).” 52 U.S.C. § 20507(a)(3). The further subsection referenced in Section 8(a)(3) refers to the removal of ineligible voters by reason of death or change in the residence of the registrant in accord with the NVRA. Id. § 20507(a)(4). Section 8(d) of the NVRA prohibits election officials from removing voters eligible to vote in federal elections from the official voter registration list unless the registrant “(A) confirms in writing that the registrant has changed residence to a place outside the registrar’s jurisdiction in which the registrant is registered; or (B)(i) has failed to respond to a notice described in paragraph (2); and (ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant’s address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice.” 52 U.S.C. §20507(d). Plaintiffs include registered voters who were improperly removed from the voter registration list and declared ineligible to vote in the election held on November 8, 2016, and an organization that represents and assists voters who were improperly removed. This case meets all of the requirements of Rule 65 of the Federal Rules of Civil Procedure regarding injunctive relief. 2 Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 3 of 22 PageID #: 89 Defendants have prior notice of this suit due to Plaintiffs’ Original Complaint. See Dkt. 1. JURISDICTION AND VENUE This action is brought pursuant to the NVRA’s private right of action, 52 U.S.C. § 20510, and 42 U.S.C. § 1983. This Court therefore has subject matter jurisdiction over Plaintiffs’ claims because Plaintiffs’ claims arise under federal law. 28 U.S.C. § 1331. This Court has personal jurisdiction over Defendants, all of whom are sued in their official capacities and are either government entities, elected, or appointed officials in New York City and New York State. All Defendants work or reside in the State of New York. Venue in this District is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district and in this division. PARTIES A. Organizational Plaintiff Plaintiff Common Cause, New York State (“Common Cause NY”) is the New York State Chapter of Common Cause, a nonpartisan grassroots organization dedicated to promoting an open, honest, and accountable government. Common Cause NY has approximately 20,000 members and activists throughout New York City, out of a total of more than 40,000 members and activists throughout New York State. As part of its work to empower ordinary people and strengthen public participation in institutions of government, Common Cause NY works to register voters, encourage their participation, and protect their right to vote. Common Cause NY’s efforts therefore mirror the NVRA’s stated goals of “increas[ing]” the number of eligible citizens who register to vote in elections for Federal offices” and implementing procedures at all levels of 3 Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 4 of 22 PageID #: 90 government to “enhance[] the participation of eligible citizens as voters in elections for Federal office.” 52 U.S.C. § 20505. Defendants’ actions have adversely impacted Common Cause NY and its members. The complained-of actions have frustrated Common Cause NY’s purpose of ensuring that citizens eligible to vote are afforded the right to do so. As a result of Defendants’ actions, Common Cause NY has been forced to expend significant resources to address voters’ concerns about the NYC BOE’s voter list maintenance procedures. During and after the April 2016 primary election, for example, Common Cause NY became aware that voters may have been wrongly purged from the voter rolls despite those individuals having voted in previous elections and believing they were registered. Following the primary election, Common Cause NY staff members immediately assisted many voters who had allegedly been purged by clarifying their registration status and, where necessary, helping ensure that they became registered for the November 2016 election. Common Cause NY spent a significant amount of time and other resources following up on voter complaints. Common Cause NY staff called voters, gathered details about their particular circumstances, checked their registration status using the online New York State lookup tool or directed voters to that website, and provided them with instructions on how to register again or check the status of an affidavit ballot, if necessary. Through their investigation, Common Cause NY spoke to numerous individuals who were wrongfully purged earlier this year. One of these voters contacted the NYC BOE about being restored to the registration list but was unsuccessful. He ultimately was unable to vote in the November 2016 election, even though he had previously voted in the November 2012 election in New York City. 4 Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 5 of 22 PageID #: 91 Some of the voters who reported that they had been purged from the voter rolls before the April primary election were members of Common Cause NY. Common Cause NY catalogued its efforts in a detailed manner, collecting information from various sources and repeatedly seeking to collect information through the NYC BOE. Common Cause NY prepared a time-consuming Freedom of Information Law request and conducted telephonic and in-person interviews with NYC BOE personnel. Common Cause NY continues to expend efforts to address voters’ concerns with the NYC BOE’s maintenance of voter records. B. Individual Plaintiffs The Individual Plaintiffs named in this complaint are Benjamin Buscher, Sean Hennessey, Rebecca Libed, Andrew Gerald, Susan Miller, and Sarah Milam (collectively, the “Individual Plaintiffs”). Plaintiff Benjamin Buscher is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. He is a permanent resident of New York City who resides in Brooklyn, New York. Plaintiff Sean Hennessey is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. He is a permanent resident of New York City who resides in Brooklyn, New York. Plaintiff Rebecca Libed is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. She is a permanent resident of New York City who resides in New York, New York. Plaintiff Andrew Gerald is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. He is a permanent resident of New York City who resides in Staten Island, New York. 5 Case 1:16-cv-06122-NGG-VMS Document 13 Filed 12/10/16 Page 6 of 22 PageID #: 92 Plaintiff Susan Miller is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. She is a permanent resident of New York City who resides in New York, New York. Plaintiff Sarah Milam is a United States citizen and satisfies all of the eligibility requirements for voting in New York State. She is a permanent resident of New York City who resides in New York, New York. C. Defendants Defendant Board of Elections in the City of New York (hereinafter “NYC BOE”) is responsible under New York State Election Law for, among other things: (1) voter registration, outreach and processing; (2) maintaining and updating voter records; (3) recruiting, training and assigning the various Election Day officers to conduct elections; (4) operating poll site locations; (5) ensuring each voter their right to vote at the polls or by absentee ballot; and (6) canvassing and certifying the vote.

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